On Contraception, Dumbing Down Tyranny

Fri, 01/10/2014 - 12:00pm — Peter Montgomery

On Contraception, Dumbing Down Tyranny

In recent years, conservative evangelical and Catholic activists have made "religious liberty" their culture war rallying cry as well as their primary legal and political strategy. In doing so, they often use irresponsible rhetoric about American Christians being subject to tyranny and religious persecution. And they portray other religious liberty advocates who disagree with them on policy issues as enemies of faith and freedom.

This strategy to claim ownership of the moral high ground of religious freedom plays out in debates over anti-discrimination laws and marriage equality as well as the current barrage of lawsuits challenging the contraception coverage requirements under the Affordable Care Act. One case in particular, a lawsuit brought by the Becket Fund for Religious Liberty on behalf of the Little Sisters of the Poor, demonstrates the degree to which religious conservatives are trying to stretch the definition of religious liberty.

The Little Sisters is an order of nuns that operates some 30 homes for the elderly; at least two of them employ more than 50 lay people. Becket is suing to prevent the order from having to certify that it has a religious objection to providing insurance coverage that its employees could use to access contraception. Becket lost at the district court level, and it is asking the Supreme Court to give the organization a break from the law's requirement while its appeal is considered by the Tenth Circuit. Justice Sonia Sotomayor has granted[1] the group temporary relief from enforcement of the requirement while considering the request.

Becket and its allies are suing under the Religious Freedom Restoration Act (RFRA), a 1993 law designed to protect religious minorities from having their rights trampled on. Under RFRA, which was supported by a religiously and politically diverse coalition that included People For the American Way, the federal government cannot impose a "substantial burden" on a person's exercise of religion unless it is pursuing a compelling interest and does so in the least restrictive way. Those are general terms, and people who back RFRA's principles frequently disagree on how they should be applied in particular cases.

In its lawsuit representing the Little Sisters, Becket argues that it is a substantial burden on the order's religious freedom to require that it certify its religious objections to contraception. Under the accommodation provided by the Obama administration for religious organizations, the group would be relieved of responsibility for providing or paying for insurance coverage of contraception. Douglas Laycock, a religious liberty advocate respected by conservatives as well as liberals, has said he believes the administration went to "remarkable lengths" to accommodate religious nonprofits.

But Becket calls the certification a "permission slip" for employees to obtain contraception from someone else, because signing the objection initiates the process by which an insurer provides the coverage directly to employees. That in itself strains what many would consider a substantial burden on the exercise of religion. What makes it even more of a stretch in this case is that the Little Sisters' insurer is classified as a church fund, which is exempt from the requirements of the ACA. So affirming its religious objection to contraception will not grant the groups' employees access to contraception coverage through the alternative route developed by the Obama administration.

Yet the Becket Fund says the Obama administration wants to force nuns to sign a form "forbidden by their religion" and "bully nuns into violating their religious beliefs" under the threat that it will "crush" the nun's ministry. In its brief to the Supreme Court seeking an injunction against enforcement of the ACA requirement, Becket criticized[2] the government's argument that the Little Sisters can resolve the dispute simply by affirming their objection.

Such reasoning would, of course, resolve all religious liberty cases: Quaker conscientious objectors would suffer no penalties if they would just join the military; Jewish prisoners would suffer no burden if they would just eat the pork; Seventh Day Adventists would not lose their benefits if they would just work on Saturdays.

The Solicitor General's response[3] argued that the Court was being asked to decide "whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks." And it rejected Becket's analogies:

It is applicants' position, not that of the court of appeals, that would lead to absurd results in those cases, for it would seemingly mean that the Quaker could not be made to attest to his status as a conscientious objector before being absolved of his military obligations; that the Jewish prisoner could not be required to fill out a form saying he had a religious objection to the consumption of pork before he was provided an alternative meal; and that the Seventh Day Adventist could not be obligated to state that he had a religious objection to working on Saturdays before being relieved of his shift.

Becket is also counsel in the Hobby Lobby case, in which it is trying to expand the scope of RFRA by claiming that for-profit corporations can have religious beliefs and a religious conscience and should be allowed to exempt themselves from laws they don't like based on those claims. It's an effort to build on the Supreme Court's Citizens United decision: If for-profit corporations count as "persons" for the purpose of influencing elections, why can't those corporate "persons" have religious consciences that need to be protected? Under that principle, business owners could claim religious objections to all kinds of laws that protect their employees, including those that prohibit discrimination against women and LGBT individuals - not to mention collective bargaining rights and the minimum wage, which some conservative Christian leaders claim are un-Biblical.

It is worth noting that, unlike some conservative legal groups, the Becket Fund recognizes that religious liberty applies to people of every religion. It has taken action to protect the rights of religious minorities, including Muslims who faced resistance to the construction of a mosque and community center in Murfreesboro, Tennessee. At times it has stood with groups like the American Civil Liberties Union and People For the American Way Foundation.

But Becket can also be quick to deploy the Religious Right's culture war rhetoric against those who disagree with it. Back in March, in a case in which Becket was opposed by the American Civil Liberties Union and Americans United for Separation of Church and State, the group suggested[4] that opponents of a school voucher program were "anti-Catholic bigots." In 2012, the Becket Fund co-sponsored a Manhattan Declaration event in Brooklyn; according to one report[5], Becket President William Mumma said that in today's culture wars, "religion is not an accidental victim, it is the target" for radical secularists. "When government tries to murder religion," Mumma is quoted saying, "it may murder religious liberty but not religion,' he promised, as faith will survive amid persecution."

As Becket and its clients know, people of many faiths, in many places, suffer brutally from religious persecution and religiously-motivated violence. While there are obviously intense, deeply felt disagreements about the contraception mandate, a good-faith effort has been made to accommodate them. You may disagree with where the line has been drawn, and you are free to ask the courts to draw it somewhere else. Indeed, some courts have agreed with Becket's position in cases involving the HHS mandate, and there are many court rulings to come before these immediate issues are resolved.

The inherent tensions between religious liberty and other constitutional principles like equality under the law will never be resolved completely by a single decision; public officials and courts will continue to make challenging balancing-act judgments. That means some people will inevitably believe that their rights have been violated or their interests harmed. But let's keep things in perspective. Crying "wolf" on religious persecution and portraying those who disagree on policy positions as enemies of faith and freedom poisons our political climate. Signing a form to opt out of a program you object to is not tyranny. Not even close.